People v. Silveria and Travis ( 2020 )

Filed 9/23/20
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL TODD SILVERIA and JOHN RAYMOND TRAVIS,
Defendant and Appellant.
S062417
Santa Clara County Superior Court
155731
ORDER MODIFYING OPINION AND DENYING PETITIONS FOR
REHEARING
THE COURT:
The opinion in this matter filed on August 13, 2020, and appearing
at 10 Cal. 5th 195 is modified as follows:
1. Add a footnote after the sentence spanning pages 209 and 210
reading, “On a Tuesday in January 1991, Silveria showed his friend Gregg
Orlando a wad of cash, and said, ‘We killed somebody last night.’ ” The
new footnote should read:
At the guilt phase, this portion of Orlando’s testimony was heard
only by Silveria’s jury. Orlando also gave substantially similar
testimony at defendants’ joint penalty retrial.
2. In the first full paragraph on page 305, delete the sentence and
citation that read: “We conclude there is no reasonable likelihood that the
court’s error misled the jury. (See People v. Mitchell (2019) 7 Cal. 5th 561,
579 [248 Cal. Rptr. 3d 587, 443 P.3d 1] [“In reviewing a claim of
instructional error, the court must consider whether there is a reasonable
likelihood that the trial court's instructions caused the jury to misapply
the law in violation of the Constitution.”].) As modified, the replacement
sentence and citation now read:
We conclude there is no reasonable possibility that the court’s error
affected the verdict. (See People v. Gomez (2018) 6 Cal. 5th 243, 309–
310; see also id. at p. 310 [“We find no reasonable possibility that the
instructional error affected the jury’s penalty determination.”].)
3. Delete the sentence spanning pages 305 and 306 that reads:
“Given these instructions at the end of the penalty retrial, there is no
reasonable likelihood that the jurors who may have heard the challenged
language at the outset of trial failed to understand that they ‘bore the
ultimate responsibility for choosing between death and life imprisonment
without parole’ (Ray, supra, 13 Cal.4th at p. 355), and that they could
consider pity and sympathy for the defendants.” As modified, the
replacement sentence now reads:
The instructions given at the end of the penalty retrial correctly
informed them that they “bore the ultimate responsibility for
choosing between death and life imprisonment without parole” (Ray,
supra, 13 Cal.4th at p. 355), and that they could consider pity and
sympathy for the defendants. We therefore conclude there is no
reasonable possibility that without the erroneous instruction on
CALJIC 1.00 to some of the jurors during voir dire Silveria would
have received a more favorable verdict.
These modifications do not affect the judgment.
The petitions for rehearing are denied.